*1 DIETRICH, Cir- Before RUDKIN Judges, NORCROSS, Judge. cuit District Judge. NORCROSS, District This is an by the of an accident action beneficiaries policy by appellee insurance issued to Leslie Brownlee, policy J. insured. its January expired terms noon o’clock following provision: 1927. It contained the shall, through “If accidental » n * * means, sustain independently exclusively which shall causes, immediately, disease and all other continuously wholly disable from the of the and result in date accident follоwing specific of the. losses within weeks, pay— the Association thirteen * * * ” $5,000.00. loss of For life joined on following allega- Issue was complaint: tion “That on January, 1927, the first prior to 12 o’clocknoon of said date policy while said was in full force and ef- railroad fect, while the said insured, Leslie J. 566 reads as follows: “No Section charge, demand, shall collect receive Brownlee, outing pleasure trip corporation compensа person, a tion for the firm or a less Hood, on Mount situated in County transportation property or for a River, Oregon, Hood State the said Leslie rendered service rendered sideration of to be con person, corporation Brownlee received and bodily J. firm or furnishing part to; from there facilities incident injuries through effected external, violent nothing prohibit herein shall facilities or service railroad means, accidentаl whieh said means alone procuring incident to January caused his death 20,1927.” transportation paying com a reasonable conclusion pensation testimony At the therefor.” *Rehearing January denied 14, 1929.
72
among
following:
appellee’s
(1)
motion
which are
District Court sustained
the
That
appeal
insured fell and
verdict,
directed
and this
for a
prosecuted’
judgment
death;
(2)
thereon.
resulted in his
from a
entered
that insured
lost,
having
The evidence
thе fact that
became
exhausted
food
established
insured, supply,
death;
morning
January 1, 1927,
(3)
insured,
starved to
the
the
having
company
Feyerabend,
exhausted, stopped
in
with
A1
becometired
to
started
subsequently
death;
rest and
(4)
to
Hood.
froze to
or
climb to
summit of Mt.
Some
forenoon,
insured, because of
strain
time in the
because of the existence
the physical
severity
to
snowstorm,
subjected,
de-
which he had been
died of nat-
the insured
ural
give
attеmpt
cided to
causes.”
to return
down the
This
mountain.
was the last ever
If,
contended,
as
there is no evidence
him,
seen of
or
alive
dead.
con-
jury may
in
record from which
do
time;
tinued the ascent for a
then
also
speculate
guess
other than
or
as
to
cause
gave up
portions
and returned. Other
of the
judgment
then
af
evidence will be considered in connection with
Heading
Boyer (C.
3d)
firmed.
Co. v.
A.C.
legal questions presented
185;
on the record.
(2d)
Philadelphia
Ry.
6 F.
& R.
(C.
302; Spain
sustaining
3d)
In
the motion for a
v. Cannon
C. A.
directed
296 F.
commenting
Oregon-Washington
Co., 78
verdict,
court,
after
on cer- v.
R. & N.
Or.
470,
153
authorities,
1917E,
P.
Ann.
tain
said:
Cas.
R.,
Co.,
Medsker v. Portland
L. & P.
81
in this ease we
assume that
“Now
Or.
.up always during storm, you the ice a severe cannot bridge over, and cornices form up or top crevasse; canyons, lip these cliffs but when the of a crevasse at the space seen and has never been black sult storm too dense sort is not diligent though search again, or heard from appears.” made, of immediate been the inference deter- has province It was drawn, not been may has justly the death submitted whether from the evidence mine appellee. falling controverted into with an aeeident insured met Ins. N. Mutual Life canyon, In the ease of W. ice, or into a crevassе of snow or court (C. v. Stevens C. F. death, tired and starved to or became lost causes. said: natural death, or died from froze to who is last that when one conceded “It If was occasioned from death peril, of imminent greater seen a state possibilities, there was a latter again probably death, is never jury might have result probability, as less body him is from, though diligent search for evidence, heard determined from the made, im- death during the inference immediate the search have found been and, justly drawn.” mediately disappearance, following the drifting appears if not found then because for also rule contended during found support .been authorities: snow, it would find is, Honor, Carpenter Legion made summer. Sup. Council body have lain possible 597; course, App. 79 Mo. Tisdale v. Ins. found; have been open space, Iowa, 170, in an and not 96 Am. Dec. Lancaster *5 enough leave evidence C. J. but there was 62 Mo. Wash. Life Ins. jury. question for the determination 1169. pot necessary jury that evidence be It is There evidence from which the was every possibility preclude weight as to Brownlee could have concluded Leslie only necessary there be sub- peril error. It is in a from state of imminent at least was support the conclusion evidence to accident, stantial soon as he his some started on as sqareh evidence which the being reаched. The His downward course. increased alone leave it a sufficient to made was showed was peril. He have fallen into a cre- jury to whether question for the determine manner, and vasse, or fallen in other some one of result of accident or death was the in his which resulted possible causes. the other peril imminent, death. The was presented question is whether jury next found, The could have from evi- it jury might aeeident, from which the dence, was evidence met with an occurred the accident conclude the inference follows that accident oc- resulting expiration policy, immediately following separation to the curred 13 weeks there- insured within Feyerabend. the death of the If met he with an acci- merely prevented after. dent which him from con- tinuing that when Leslie journey mountain, evidence discloses down the The freezing atmosphere abandon ascent and decided to extinguished Brownlee approxi- an return, he elevation weeks, had reached life the time limit of men- before 9,000 10,000 policy, the summit of mately expired. tioned 11,125 A snow- being remaining question feet. the mountain The case relates impos- Feyerabend so that prevailing storm was was when Brownlee time separated. ap- considerable distance —“be- sible to is contended see pellee separation were unable to no proof so bad came except anything edge of recognize Feyerabend White occurred before 12 o’clock. was beyond. deep Canyon, which testify any positiveness unable to as to separated. on the mountain blue.” Lower he and Brownlee He changed young men had their snowshoes he things testified that “does not remember the iee-ereepers “crampons” reaching that took before Government —framework spikes sharp like a shoe to which are shaped Camp days because of the strain of the prevent icy slipping on the which He attached followed.” testified that his recollection young men left Timber Line surfaces. that he reached Inn Battle Axe at Gov- an on mountain at eleva- Cabin, Camp located ernment at 4:30 in the after- about feet, 2:30 6,000 at about o’clock that tion of inn is at 4,000 noon. The an elevation of began morning. snowstorm about seven feet, 6,000 starting feet about below his increasing- severity later, journey. as time point party on four, hours return A progressed. making mountain, the ascent of the also appellant Feyerabend, The contention of counsel for Brownlee and seen and the person was that where a last seen in a state latter estimated testified were peril might probably of imminent re- them in two hours behind time. One perfect health, fеd, party clad; tbe well of tbis saw two ahead well he members except peril at was no them, distance between such as and estimated the beset his com- panion and three-quarters party of four other mountain mile. This climbers day, storm, finding and a gave up the ascent because that -within that brief hour death,” he met with almost frozen to “because unknown accident o’clock, Camp resulted in at 11 and reached Government finding such a made, is еver necessity at in the afternoon. “had no be based on long separated guesswork wildest idea how kind specula- traveled * * * tion. Leslie; like it seemed Feyera- hour.” In his downward course should be affirmed. bend walked mile and a half off the usual course. The witness Lenz testified that he made the descent from the summit of the * SASSER et al. v. UNITED STATES. January 7,1927, leaving 3:40 at Appeals, Court afternoon, arriving Fifth Circuit. at Government November 1928. Camp 9':15; at that he estimated he madе from the summit to Crater Rock No. 5236. twenty minutes. From Crater Rock to Gov- Camp approximately ernment five' Traveling speed, hours. the same to have Camp reached Government 4:30 would have had to have left Rock 11:30, and earlier if he wandered a mile and a half way. out of his It is clear that there was evidence from which the could have determined as a *6 separated fact that Leslie Brownlee Feyerabend and his downward started on noon, policy course when ex-
pired. A verdict, motion for a directed like a nonsuit, motion for a nature of is demurrer to the In evidence. its determina upon part plaintiff tion the evidence accepted true, every proper must be or deduction therefrom taken inference most strongly plaintiff. in favor of the Harlan As said Mr. Justice in Travel- Randolph (C. ers’ Ins. Co. C. F. 754, 759: permitted to return “The according own view of verdict to its facts, upon survey unless the whole evi- giving every dence, and effect inference fairly reasonably drawn palpably party asking per- ease is emptory instruction.” presented require The evidence does not upon basing inference, of an inference a ease it is where the same evi-
but rather only supports an dence inference cause, time, but also the
thereof. reversed, and the cause proceedings for further remanded not incon- opinion. sistent with this RUDKIN, Judge (dissenting). parted companion with his When expired, before his insurance
one hour
*Rehearing denied December 1928. Certiorari denied 49 S. Ct. 73 L. Ed. —.